JURIST Guest Columnist Linda M. Keller of Thomas Jefferson School of Law explores the potential impacts for the International Criminal Court of new Palestinian status at the UN in part one of this two-part series …

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) is reportedly considering how the new status of Palestine at the UN impacts the ICC. The UN General Assembly recently granted non-member observer state status to Palestine. The most immediate issue is whether the General Assembly resolution will change the OTP’s previous decision refusing to go forward with a preliminary examination of international crimes in Palestine. Although Palestine filed a declaration accepting ICC jurisdiction, the OTP decided that Palestine’s status as a “state” was too uncertain for the declaration to be effective. The General Assembly vote might change that determination. Moreover, the OTP and others at the court are likely considering how the resolution might affect potential ratification of the ICC statute by Palestine.

Some media reports assume that the resolution means Palestine will join the ICC and imply that a case against Israel for military action or settlements will be soon forthcoming. The reality is far more complicated because:

1. Palestinian officials may not take any further action to prompt the OTP to reconsider its prior refusal;
2. The new prosecutor might not follow the prior prosecutor’s reasoning, which underlies the presumption that the resolution resolves the statehood issue before the ICC;
3. The Palestinian declaration accepting ICC jurisdiction over Palestine, made prior to the General Assembly resolution, might not be valid;
4. A potential new Palestinian declaration might not cover acts prior to the resolution, particularly as far back as originally envisioned;
5. If a declaration is effective, an investigation might still not go forward based on:

(a) A lack of a state or Security Council referral or request by the OTP to open an investigation;
(b) The principle of complementarity (in that Israeli investigation or prosecution might render the case inadmissible);
(c) Lack of gravity of the alleged crimes;
(d) The exercise of prosecutorial discretion, finding that investigation or prosecution is not in the interests of justice.

6. If an investigation does go forward, there are issues regarding temporal and territorial scope;
7. If Palestine decides to ratify the statute rather than rely on a declaration accepting jurisdiction, the process would take significant time and similar issues would arise.

Part I of this article explores these first four points, while Part II will examine the remaining issues.

If the ICC attains jurisdiction over Palestinian territory, such jurisdiction would not be limited to Israeli crimes. Palestinian actions would also be considered as potential international crimes, which may complicate both Palestinian decisions to move forward at the ICC and the prosecutor’s tasks in evaluating potential crimes.

Palestinian officials initially indicated the possibility of pursuing the declaration long-term. However, after Israel’s announcement of further settlement expansion in the highly controversial E1 area in the West Bank — a potential war crime — Palestinian officials might well turn to the ICC sooner than planned.

On the other hand, Christian Wenewaser, former president of the ICC Assembly of States Parties, has speculated that Palestinian statements about the ICC are more likely political tactics than realistic threats of immediate action. He notes that the ICC would also be tasked with investigating Palestinians firing rockets into Israel, which might discourage further Palestinian action. This seems especially pertinent given the apparent ongoing efforts at reconciliation between Fatah and Hamas. Nonetheless, Palestinian officials may reopen the OTP’s preliminary examination of international crimes in Palestine, if only to strengthen their hand against continued Israeli settlement activity (a strategy known as “lawfare”). It is not clear whether Palestine might try to reactivate the prior declaration, enter a new one or ratify the treaty.

The implications of the General Assembly resolution depend on the complex ICC system. The ICC is a treaty-based body established via the Rome Statute to prevent and punish genocide, crimes of humanity and war crimes (as well as aggression, should aggression amendments be adopted). The ICC is not a court of universal jurisdiction, but generally has jurisdiction over crimes committed on the territory of state parties or by their nationals. (One exception relates to a UN Security Council referral, which grants ICC jurisdiction over a non-state party such as Sudan; obtaining custody over the accused is another matter.) Israel is not a party to the Rome Statute. Given the US veto in the Security Council, it will not be referred to the ICC. As a result, the ICC has no jurisdiction over crimes committed on the territory of Israel or by its nationals in Israel. Palestine is not a party to the Rome Statute either. However, the government of Palestine attempted to trigger jurisdiction over acts on the territory of Palestine using another avenue.

Under Article 12, “a State which is not a Party to this Statute” may lodge a declaration that accepts the jurisdiction of the ICC “with respect to the crime in question.” The government of Palestine lodged such a declaration [PDF] on January 22, 2009, accepting jurisdiction for “acts committed on the territory of Palestine since 1 July 2002.” The declaration responded to Israel’s Operation Cast Lead, Israeli military action in Gaza subsequently deemed to be war crimes and crimes against humanity in the Goldstone Report, though not without controversy.

Under Article 11, the ICC has jurisdiction over crimes committed after the entry into force of the statute for that state, unless the state has filed a declaration under Article 12(3). The interplay of these two articles is disputed as it relates to a potential ratification of the statute by Palestine, as will be discussed in Part 2. But it apears a non-state party can accept jurisdiction prior to the date of the declaration.

The prosecutor considered the Palestinian declaration for over three years. On April 3, 2012, the OTP issued an update on the situation in Palestine. It noted that jurisdiction under Article 12 is a precondition to any examination of other conditions for jurisdiction or any analysis of alleged crimes. It noted that Article 12 refers to a “State” filing a declaration to accept jurisdiction. Rather than determining whether Palestine qualifies as a “State” under the terms of the Rome Statute, the OTP concluded that it lacked the authority to do so. It noted that it is the UN secretary-general who decides whether to accept the accession of a “State” ratifying the statute. The secretary-general typically follows or seeks the advice of the General Assembly in reaching such a determination.

Although the reasoning for deferring to the secretary-general has been criticized, the OTP concluded that the secretary-general — with the guidance of the General Assembly — has the competence to decide disputes over the status of the “State” of Palestine with regard to Article 12(3). The OTP also noted that the ICC Assembly of States Parties might take up the issue [PDF].

The OTP then examined the UN status of Palestine, presumably as a proxy for the secretary-general’s putative determination of statehood. At the time, Palestine had “observer” status at the General Assembly and Palestine’s application for admission as a member state had not yet been acted upon. The OTP concluded: “The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12.”

On December 4, 2012, the General Assembly apparently made such a decision: it upgraded Palestine to “non-member observer State” status. However, some states voting for the resolution “underscored that statehood could only be achieved through dialogue between the parties, implying that Palestine had not yet achieved statehood.” Nevertheless, the resolution might satisfy the condition set by the OTP. But the OTP is now led by a new prosecutor, Fatou Bensouda, who may disavow her predecessor’s prior position.

Bensouda could conclude the prior determination improperly deferred to the secretary-general of the UN. She could decide that the determination belongs to the Assembly of States Parties, which could derail or delay further action. Yet, if Bensouda decides that the ICC should decide, she may proceed with the preliminary examination.

Assuming that the resolution qualifies Palestine as a state, it is not clear [PDF] how the Palestinian declaration should be treated. If Palestine was not a state until November 29, 2012, could it have properly submitted a declaration accepting jurisdiction in 2009? Could that declaration properly extend the court’s jurisdiction all the way back to July 2002 well before the resolution? Could a new declaration cure the problem or is it impossible for a state to consent to jurisdiction prior to its statehood? Perhaps any Palestinian declaration would be effective only with regard to crimes allegedly committed after the resolution satisfying the OTP’s statehood concern.

On the other hand, perhaps Bensouda will set an earlier date for effective statehood. Many states recognized Palestine as a state years ago. Further, on October 31, 2011, UNESCO admitted Palestine as a member state, which would likely suffice in terms of treaty ratification, the apparent test previously used by the OTP. Thus, there is much uncertainty related to the declaration itself.

Part II will explore the issues that arise even if the declaration is considered valid.

Linda M. Keller is an Associate Professor at the Thomas Jefferson School of Law in San Diego, California. She served as a Visiting Professional at the International Criminal Court during the 2011-2012 academic year and is an expert on international criminal law and human rights.

Suggested citation: Linda M. Keller, The International Criminal Court and Palestine: Part I, JURIST – Forum, Jan. 29, 2013, http://jurist.org/forum/2013/01/linda-keller-palestine-icc-part1.php